THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270
Go to Volume 13 Table of Contents  -  Go to Chapter 270 Table of Contents

270.2 Presumption Of Innocence - Prosecution Burden To Prove Guilt

    270.2.1 Presumption Of Innocence: Preliminary Instruction
    270.2.2 Duty To Presume Defendant Innocent: Defendant's Attempt To Refute Prosecution Evidence Does Not Shift Burden
    270.2.3 Duty To Presume Defendant Innocent: Defendant Not Required To Testify Or Produce Any Evidence
    270.2.4 Presumption Of Innocence Continues Throughout Trial And Deliberation
    270.2.5 Definition Of The Term "Burden"
    270.2.6 Rejection Or Disbelief Of Witness Does Not Satisfy Prosecution’s Burden
    270.2.7 Prosecution Bound by Defendant's Statement Unless Contrary Evidence Presented
    270.2.8 Error To Instruct Jury That Defendant Is Presumed "Not Guilty"
    270.2.9 Failure To Instruct On Burden Of Proof: Reference To Burden In Other Instructions Or Argument Does Not Cure The Error
    270.2.10 Avoiding Language That Burden Never "Shifts" To Defendant
    270.2.11 Presumption Of Innocence Is Not A "Mere Slogan"
    270.2.12 "Guilt Or Innocence" Comparison Undermines Presumption Of Innocence
    270.2.13 Presumption Of Innocence Applies To Each Material Allegation Of The Charge
    270.2.14 Improper To Instruct That Plea Of Not Guilty Constitutes A Denial Of Every Material Allegation In The Charges
    270.2.15 Presumption Of Innocence Alone Sufficient To Acquit
    270.2.16 Clarification Of Burden Of Proof When One Defendant Points The Finger At Another
    270.2.17 Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise
    270.2.18 Instruction Defining Reasonable Doubt May Not Cure Failure To Instruct On Presumption Of Innocence
    270.2.19 Presumption Of Innocence: Federal Model Instructions And Notes

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

    270.2.1    Presumption Of Innocence: Preliminary Instruction

RATIONALE: The presumption of innocence is such a crucial component of a criminal trial that the jury should understand it from the outset. If the jurors don't understand this fundamental principle until the end of the trial, they may improperly assume the defendant to be guilty resulting in the formation of opinions or conclusions about the case, either consciously or subconsciously, which cannot be totally erased by belated instruction on the presumption of innocence.

POINTS AND AUTHORITIES: The presumption of innocence is the touchstone of American criminal jurisprudence. (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 2.03, note [Presumption Of Innocence- Reasonable Doubt- Burden Of Proof Generally] (West, 4th ed. 2000); see also Carella v. California (1989) 491 US 263, 265 [109 SCt 2419; 105 LEd2d 218]; Sandstrom v. Montana (1979) 442 US 510, 523-24 [99 SCt 2450; 61 LEd2d 39].) In U.S. v. Veltmann (11th Cir. 1993) 6 F3d 1483, 1493, the court was "troubled" by absence of instruction on the presumption of innocence at the beginning of the trial. "Although the court charged the jury on the presumption before they retired to deliberate, we believe it extraordinary for a trial to progress to that stage with nary a mention of this jurisprudential bedrock." (Ibid.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

    You should understand that an indictment is simply an accusation. It is not evidence of anything. The defendant[s] [has] [have] pleaded not guilty, and [is] [are] presumed to be innocent unless and until proven guilty beyond a reasonable doubt.

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.01 [General: Nature Of Case; Nature Of Indictment; Burden Of Proof; Presumption Of Innocence; Duty Of Jury; Cautionary] ¶ 2 (2000).]

CAVEAT: NCJIC has added brackets to the instruction regarding the defendant’s failure to testify; the defense may not wish to have the jury instructed on this point. (See NCJIC 18.3.4 [Waiver Of Instruction Regarding The Defendant's Failure To Testify To Avoid Prejudicially Highlighting The Matter].)

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: When the defense attempts to refute the prosecution evidence through cross examination, argument or affirmative evidence, the jury may improperly shift the burden to the defendant to disprove the prosecution's case.

POINTS AND AUTHORITIES: The sample instruction below was given in U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843, in response to an implication by the prosecutor in the opening statement that the defendant would be presenting evidence. However, even absent such a statement by the prosecution, the jury should understand that the defendant has no obligation to present evidence and that any attempt by the defendant to present evidence -- either through cross-examination or by affirmative testimony -- does not alter the burden of the prosecution. (See People v. Hill (CA 1998) 17 C4th 800, 831 [72 CR2d 656] ["...to the extent [the DA] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution's evidence..."]; see also State v. Miller (WV 1996) 476 SE2d 535, 557 [if requested court must instruct that defendant has no obligation to offer evidence].)

    See also NCJIC 270.2.6 [Rejection Or Disbelief Of Witness Does Not Satisfy Prosecution’s Burden].

    See NCJIC 12.2.1 [Charges And Burden Of Proof].

    See NCJIC 18.3 [Failure of Defendant To Testify].

    See NCJIC 18.4.1 [Defendant Not Required To Produce Any Evidence].

    See NCJIC 12.3.6 [Preliminary Instructions: The Defendant’s Right Not To Testify].

    See NCJIC 251.4.2.7 [Defendant’s Good Character: Defendant Has No Burden Of Producing Evidence Or Calling Witnesses].

    See NCJIC 270.2.15 [Presumption Of Innocence Alone Sufficient To Acquit].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION:

    I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the [prosecution] in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the [prosecution] to prove guilt beyond a reasonable doubt. This burden never shifts throughout the trial. The law does not require a defendant to prove his innocence or to produce any evidence. There's no burden on [defendant] to produce any evidence. In every case, and I have no doubt in this case as well, the defendant will be presenting evidence by way of cross-examination of [prosecution] witnesses. The defendant relies upon evidence elicited by cross-examination. So that the opportunity that [defendant] will have, as the defendant in every case has, to bring out certain facts by way of cross-examination and by way of argument and analysis to the jury, does not in any way imply a necessity on the part of the defendant to produce any evidence. That's fundamental. There is no need of the defendant to produce any evidence. There is no need in law for him to take advantage of the opportunity. He doesn't have to put a single question on cross-examination if counsel decides not to do so. The bottom line is that the burden is on the [prosecution] to prove guilt beyond a reasonable doubt. There is no burden on the defendant to prove his innocence, and there's no burden on the defendant to come forward with a single item of evidence or testimony.

[Source: U.S. v. Maccini (1st Cir. 1983) 721 F2d 840, 843.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

    See NCJIC 18.4.1 [Defendant Not Required To Produce Any Evidence].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: Unless correctly worded, an instruction on the presumption of innocence may imply that the presumption of innocence can be overcome before all the evidence is in and the jury has deliberated. The jury should understand that the presumption continues throughout trial and during deliberations.

POINTS AND AUTHORITIES: It is well recognized that the presumption of innocence continues throughout the entire trial and applies to every stage of the trial including deliberations. (See Clarke v. Commonwealth (VA 1932) 166 SE 541, 545-46; see also State v. Goff (WV 1980) 272 SE2d 457, 463 [the burden never shifts to the defendant].) Hence, it would be improper to give the jury the impression that the presumption of innocence continues until the jury, in its discretion, decides that it should end. (See People v. Johnson (IL 1972) 281 NE2d 451, 453; People v. Attard (NY 1973) 346 NYS2d 851; State v. Tharp (WA 1980) 616 P2d 693, 700; WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.01 [Advance Oral Instruction-Introductory] comment (West, 2nd ed. 1994) [words "during your deliberations" were inserted into this instruction "to avoid any suggestion that the presumption could be overcome before all the evidence is in"]; cf., U.S. v. Payne (9th Cir. 1990) 944 F2d 1458, 1462-63 [jurors told during voir dire that presumption of innocence continues until dispelled by proof beyond a reasonable doubt during deliberations].)

    For example, IOWA CRIMINAL JURY INSTRUCTIONS 100.4 [Presumption Of Innocence] (Iowa State Bar Association, 1997), states that the presumption of innocence "remains with the defendant throughout the trial unless the evidence establishes guilt beyond a reasonable doubt." This language permits the jury to find that the presumption no longer applies once sufficient evidence of guilt has been presented even if this occurs before all of the evidence has been received and prior to the jury deliberations. (See also MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 3.02 p. 15 [Presumption Of Innocence] (West, 4th ed. 1999).) "It has been held that an instruction as to the presumption of innocence which correctly told the jury that it attends the accused throughout the trial, but which the trial court qualified by adding, ‘until such time, if at all, as it is overcome by credible evidence’ is erroneous, because the jury may have inferred from this that, at some stage of the trial before its conclusion, sufficient evidence had been adduced to overcome the presumption, thus shifting the burden upon the accused. [Citations.]" (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 140 [Burden Of Proof And Presumption Of Innocence] comment p. 4 (University of Wisconsin Law School, 2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

USE NOTE: Avoiding Language That Burden Never "Shifts" To Defendant. See NCJIC 270.2.10 [Avoiding Language That Burden Never "Shifts" To Defendant].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION # 1:

    It is up to the government to prove that [defendant] is guilty, and this burden stays on the government from start to finish.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.03 [Presumption Of Innocence, Burden Of Proof, Reasonable Doubt] ¶ 3, sent. 2 (1991).]

    The defendant is presumed to be innocent of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 2.03 [Presumption Of Innocence-Burden Of Proof] ¶ 1, sent. 1-2 (1999).]

    The presumption of innocence remains with the defendant throughout every stage of the trial and during your deliberations on the verdict.

[Source: MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 1-004, [Cautionary, Preliminary Instruction 3] ¶ 6. (State Bar of Montana, 1990); see also ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 2.03, [Presumption Of Innocence- reasonable Doubt- Burden Of Proof Generally] ¶ 1, sent. 2. (West, 4th ed. 2000).]

    The defendant is presumed innocent of [every] [the] charge alleged by the prosecution. This presumption continues throughout the entire trial unless you find, during your deliberations, that it has been overcome by proof beyond a reasonable doubt.

[See WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.01 [Advance Oral Instruction-Introductory] ¶ 3 (West, 2nd ed. 1994).]

    The presumption of innocence continues throughout the trial, and exists now, and accompanies you into the juryroom. The presumption is always there.

[See Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:63 [General Instructions: Presumption Of Innocence] (West, 1999) [Original emphasis].]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: Apart from the question of whether the jury should be given a definition of proof beyond a reasonable doubt, the term "burden" is a legal term which the jury may not understand.

POINTS AND AUTHORITIES: In order to protect the defendant’s federal constitutional rights to a fair trial by jury and due process (5th, 6th and 14th Amendments), it is crucial that the jury understand the meaning of the term "burden." "Inherently, burdens of proof draw lines. Those who cannot cross the line, regardless of how close they come, are denied relief." (People v. Mixon (CA 1990) 225 CA3d 1471, 1484 [275 CR 817].)

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION:

    A burden of proof draws a line. If the prosecution fails to cross that line, regardless of how close it may have come, then the prosecution has not met its burden of proof.

[Source: Adapted from People v. Mixon (CA 1990) 225 CA3d 1471, 1484 [275 CR 817].]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: The jury may not understand that the prosecution’s burden of proof is not satisfied merely by the rejection or disbelief of the defense witnesses or defense theory.

POINTS AND AUTHORITIES: "[D]isbelief of a witness does not establish that the contrary is true, only that the witness is not credible. [Citations]." (People v. Woodberry (CA 1970) 10 CA3d 695, 704 [89 CR 330].) In other words, "rejection of testimony 'does not create affirmative evidence to the contrary of that which is discarded.' [Citation]." (Edmondson v. State Bar (CA 1981) 29 C3d 339, 343 [172 CR 899]; see also Nishikawa v. Dulles (1958) 356 US 129, 137 [78 SCt 612; 2 LEd2d 659] ["disbelief of petitioner's story ... [cannot] fill the evidentiary gap in the Government's case]; Moore v. Chesapeake & O.R. Co. (1951) 340 US 573, 576 [71 SCt 428; 95 LEd 547] [disbelief of a witness will "not supply a want of proof"]; Mandelbaum v. U.S. (2nd Cir. 1958) 251 F2d 748, 752 ["the disbelief of a witness does not necessarily establish an affirmative case"]; see also People v. Goodchild (MI 1976) 242 NW2d 465, 469-70 ["mere disbelief in a witness’s testimony does not justify a conclusion that the opposite is true without other sufficient evidence supporting that conclusion"].)

    Accordingly, when the prosecution has failed to present sufficient credible evidence to meet its burden of proof, the jury should not be permitted to utilize its disbelief of the defendant's testimony or other defense evidence to conclude that the prosecution's burden has been met. The failure to adequately inform the jury concerning this principle implicates the defendant's federal constitutional rights to trial by jury and due process (6th and 14th Amendments) by allowing the jury to convict the defendant even though the prosecution has not met its burden of proving the defendant guilty beyond a reasonable doubt.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

BRIEFING AVAILABLE: Click here [Brief Bank # B-908].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION # 1:

    This burden requires the prosecution to present affirmative evidence of guilt. However, rejection or disbelief of the defense evidence does not create such affirmative evidence. Even if you should reject all or part of the defense evidence, you may not convict the defendant unless the prosecution has presented other evidence which you believe to prove guilt beyond a reasonable doubt.

[Source: NCJIC.]

    You are the sole judges of the credibility of the witnesses and of what weight, if any, to give the testimony. If, however, you disbelieve the testimony of a witness, that circumstance does not justify a finding that the direct opposite of such testimony is true.  This is so because disbelief in testimony, in whole or in part, is not the equivalent of affirmative evidence to the contrary of the disbelieved testimony.

[See Deering's California Evidence Code § 702, "Suggested Forms."]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: As a corollary to the principle that mere rejection of evidence does not create an affirmative case, when the defendant has made an exculpatory statement to the police, the burden is on the prosecution to present additional evidence of guilt beyond the mere exculpatory statement of the defendant. Without instruction on this point the jury may not understand that the defendant’s exculpatory statement to the police is not alone sufficient to convict.

POINTS AND AUTHORITIES: The prosecution, having presented defendant's statement in order to prove their case, is bound by that statement and its explanation for the conduct in the absence of proof to the contrary. (See Virgin Islands v. Lovell (3rd Cir. 1967) 378 F2d 799, 806; People v. Lines (CA 1975) 13 C3d 500, 505-06 [119 CR 225]; People v. Collins (CA 1961) 189 CA2d 575, 589 [11 CR 504]; State v. Truman (NE 1950) 432 P2d 128, 129-30; State v. Williams (NC 1983) 301 SE2d 335, 347 [state is bound by exculpatory statements; however, state may show facts which contradict the exculpatory statement and is not bound by portions of exculpatory statement which are contradicted or rebutted by other evidence]; Knott v. State (OK 1967) 432 P2d 128, 129-30; Grady v. State (TX 1971) 466 SW2d 770, 771; Weathered v. State (TX 1935) 81 SW2d 91, 93.) Hence, to meet its federal constitutional burden to prove guilt beyond a reasonable doubt (14th Amendment), the prosecution must present evidence beyond the defendant's statement to establish guilt beyond a reasonable doubt.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE # 1: This principle does not apply when the defendant testifies and denies making the exculpatory statements. (See Brecheen v. State (OK 1987) 732 P2d 889, 897.) However, if the defendant's exculpatory statement raises a defense upon which the defendant has the burden of proof this principle may need to be further elaborated.

USE NOTE # 2: There are potential dangers with regard to the relationship of this principle to the prosecution's burden to prove guilt beyond a reasonable doubt. If the defendant's exculpatory statement is an essential fact or element, the prosecution must disprove it beyond a reasonable doubt. (See e.g., NCJIC 253.4.3 [Burden Of Proof]; see also NCJIC 270.4 [Reasonable Doubt Standard: General Principles].) Hence, normally it would be necessary for the prosecution to disprove the exculpatory portion of the statement beyond a reasonable doubt. (See Sample Instruction # 1, below.) However, if the exculpatory statement raises a defense as to which the defendant has the burden of proof Sample Instruction # 1 would not apply. In that event an instruction such as Sample Instruction # 2 may be more appropriate.

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

    The prosecution's burden of proof requires the prosecution to present evidence which disproves, beyond a reasonable doubt, defendant's statement that [he] [she] __________ (e.g. acted in self defense). Unless the prosecution has presented such evidence the prosecution is bound by the defendant's statement and you may not find defendant guilty.

[Source: NCJIC.]

    An exculpatory statement is a statement by the defendant that tends to negate the allegations of [his] [her] guilt , or a statement that tends to justify or excuse [his] [her] actions.

    When the state introduces in connection with a confession* or admission* of a defendant an exculpatory statement which, if true, would entitle [him] [her] to acquittal, he/she must be acquitted unless such exculpatory statement has been shown to be false by other evidence.    

* But see NCJIC 6.2.14 [Defendant's Statement Should Not Be Characterized As An "Admission" Or "Confession"].

[See Knott v. State (OK 1967) 432 P2d 128, 129-30 [court conceded appropriateness of instruction such as the one above]; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 9-15 [Exculpatory Statement Of Fact] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

PRACTICE NOTE: It has been recognized that it is improper to instruct the jury that it is their duty to determine the guilt or innocence of the defendant. (See NCJIC 270.2.12 ["Guilt Or Innocence" Comparison Undermines Presumption Of Innocence].) However, use of the term innocence in the presumption of innocence is a different matter. By instructing the jury that the defendant is presumed "not guilty" the court dilutes the prosecution’s burden. (See Flores v. State (OK 1995) 896 P2d 558, 562 [reversible error].)

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

APPELLATE PRACTICE NOTE: The failure to instruct on the prosecution's burden to prove guilt beyond a reasonable doubt has been held to be reversible error notwithstanding reference to the proper standard in other instructions and during the argument of counsel. (People v. Phillips (CA 1997) 59 CA4th 952 [69 CR2d 532].)

    The error has also been held to be reversible notwithstanding the giving of a proper instruction during voir dire of the jurors but before the jury was impaneled and sworn. (People v. Crawford (CA 1997) 58 CA4th 815, 824-25 [68 CR2d 546].)

    See NCJIC 270.7.1.3 [Should A Definition Of "Beyond A Reasonable Doubt" Be Given?].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

PRACTICE NOTE: Some instructions state that the burden of proof "never shifts" to the defendant. (See e.g., U.S. v. Hart (6th Cir. 1981) 640 F2d 856, 861 fn 3.) The 7th Circuit has criticized this language as "a legal concept foreign to most laymen which might only confuse jurors and detract from the main thrust of the instruction that the burden of proof lies with the government." (See 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 2.03 [Presumption Of Innocence-Burden Of Proof] comment (1999).) The language in Sample Instruction # 2, below, from the 6th Circuit Instruction "attempts to avoid this problem by simply stating that the burden is on the prosecution "from start to finish." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.03 [Presumption Of Innocence, Burden Of Proof, Reasonable Doubt], comment (1991).)

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: Over-use of the term "presumption of innocence" in our society may, consciously or subconsciously, cause jurors to discount its true significance and consider it a "mere slogan" or formality. Accordingly, it may be appropriate to protect against this danger with special instructional language.

POINTS AND AUTHORITIES: See State v. Motta (HI 1983) 659 P2d 745, 749 ["This presumption of innocence is not a mere slogan but an essential part of the law; and it places upon the prosecution the burden of proving the defendant guilty beyond a reasonable doubt of every material element of the crime charged"]; see also 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.02 [Presumption Of Innocence; Proof Beyond A Reasonable Doubt] (2002) [presumption of innocence is not a mere formality].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION # 1:

    The presumption of innocence is not a mere slogan.  It is an essential part of the law that is binding upon you. 

[See State v. Motta (HI 1983) 659 P2d 745, 749; see also HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 3.02, [Presumption Of Innocence; Reasonable Doubt] para.2. (West, 1998).]

    It is a cardinal principle of our system of justice that every person accused of a crime is presumed to be innocent unless and until his/her guilt is established beyond a reasonable doubt. The presumption is not a mere formality. It is a matter of the most important substance. The presumption of innocence alone may be sufficient to raise a reasonable doubt and to require the acquittal of a defendant.

[Source: 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.02 [Presumption Of Innocence; Proof Beyond A Reasonable Doubt] (2002).]

    The law presumes a defendant to be innocent unless proved guilty beyond a reasonable doubt. This presumption is not a mere matter of form, but is a basic constitutional right pf every criminal defendant.  

[See Cowan, Hayne, Fox, Defending DUIs in Washington (Lexis, 1999) § 16.2, Inst. No. 4.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

PRACTICE NOTE: One of the most fundamental principles of criminal law is the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt. (See Mullaney v. Wilbur (1975) 421 US 684, 696-700 [95 SCt 1881; 44 LEd2d 508].) From this principle it is axiomatic that the law does not require a defendant to prove innocence. (See People v. Hall (CA 1980) 28 C3d 143, 159 [167 CR 844]; see also Smith v. U.S. (App. DC 1996) 687 A2d 1356, 1365; see also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.01 [General: Nature Of Case; Nature Of Indictment; Burden Of Proof; Presumption Of Innocence; Duty Of Jury; Cautionary] ¶ 2 (2000).)

    Instructions which use a "guilt or innocence" comparison undermine this principle by suggesting that the jury should determine whether the defendant is "guilty or innocent." (See U.S. v. Anduar (1st Cir. 1995) 49 F3d 16, 24; U.S. v. Edwards (2nd Cir. 1996) 101 F3d 17, 19 ["motive...is irrelevant to [defendant's] guilt or nonguilt"]; and see State v. Cordeira (HI 1985) 707 P2d 373, 377; Kansas v. Keeler (KS 1985) 710 P2d 1279, 1286 [proper use of the term "not guilty" rather than the term "innocent" is preferable].) Indeed, some jurisdictions have recently modified their standard instructions from the "guilty or innocent" comparison to "guilty" or "not guilty." (See e.g., VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 2.200 [Character Of Defendant] (Lexis, 2000); WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 125 [Two Defendants: Two Counts]; 172 [Flight, Escape, Concealment]; 122 [Two Defendants: Single Count: Included Offense], p. 3; (University of Wisconsin Law School, 2000); PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 51.10 [Introductory And Cautionary Instructions-Penalty Not To Be Considered By Jury] (Kansas Judicial Council, 3rd ed. 1999) ["Your only concern in this case is determining if the defendant is guilty or not guilty."]; see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 7.04 [Separate Consideration Of Charges Multiple Defendants Multiple Counts] (1999); see also1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.02 [Presumption Of Innocence; Proof Beyond A Reasonable Doubt] (2002); see also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL BI 10.2 [Caution-Punishment (Single Defendant-Multiple Counts)] (1997); CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 1.00 [Duties Of Judge And Jury] (West, 6th Ed. 1996).)

    Nevertheless, many standard pattern instructions still include the "guilt or innocence" comparison. For example:

• HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 3.10 [Defendant’s Testimony: Impeachment by Prior Conviction] (TRCC 1999).
  
  

• 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.01B [Separate Consideration-Multiple Defendants, Charged With A Single Crime] (1991).
  
  

• ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 1.60 [Use of Alternate Verdict Forms--Lesser Included Offense] (Alaska Bar Association, 1987).
  
  

• REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI inst. 12 [Absence Of Other Participant]; inst. Standard Criminal 32 [Consider Evidence Separately] (CLE State Bar of Arizona, 1996)).
  
  

• ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d 108 [Introductory Instructions-Filing Of Indictment Or Information Not To Be Considered As Evidence]; 204 [Evidentiary Instructions-Defendant’s Character]; 301. [Lesser Included Offenses-Lesser Included Offenses: Introductory Instruction] (Lexis, 2nd ed. 1997).
  
  

• COLORADO JURY INSTRUCTIONS, COLJI - Crim 3:02-A [The Charge Against The Defendant-Not An Issue] (West, 1983).
  
  

• CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.17. [General Jury Instructions-Sympathy] (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).
  
  

• GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES (E), p. 19 [Multiple Defendants] Rev. 1/96 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).
  
  

• IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 204 [Concluding Remarks (How To Deliberate)]; 316 [Self-Incrimination Of Witness/Privilege] (Idaho Law Foundation, Inc., 1995).
  
  

• IOWA CRIMINAL JURY INSTRUCTIONS 100.8 [Consideration Of Instructions]; 100.14 [Cautionary Instructions - Joint Trials]; 100.15 [Cautionary Instruction - Multiple Counts] (Iowa State Bar Association, 2000).
  
  

• Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 3.01 [Duty To Follow Law As Instructed] (West, 1994).
  
  

• Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-19 [Failure To Conduct, Or Inadequacies In, Tests And Investigative Procedures] (Lexis, 2nd ed. 2000).
  
  

• MISSISSIPPI MODEL JURY INSTRUCTIONS - CRIMINAL, MJI-Criminal C.1:14 [Selection Of A Foreman-Communicating With The Court During Deliberations] (West, 2000).
  
  

• MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 310.18 [Limiting Instruction: Disposition Of Charges Against Witness]; 310.40 [Character: Traits Of Character Of Defendant Bearing On Guilt Or Innocense]; 310.50 [Intoxicated Or Drugged condition: Voluntary]; (Missouri Supreme Court Publications, 3rd ed. 1987).
  
  

• MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 1-006, [Jury Deliberation] para. 6 (State Bar of Montana, 1990).
  
  

• NEW JERSEY MODEL JURY CHARGES - CRIMINAL p. 15 [Criminal Final Charge] (2/24/97) (New Jersey ICLE 4th ed. 1997).
  
  

• CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 3.10 [Motive] ¶ 9; 3.45 [Flight] ¶ 2; 42.30 [Possession] (New York Office of Court Administration, 1983).
  
  

• Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:76 [General Instructions: Statements And Opinions Of Counsel And Court]; 6:34 [Witnesses: Willfully Giving False Testimony] (West, 1999).
  
  

• NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal 1.10 [Proof Beyond A Reasonable Doubt] (State Bar Association of North Dakota, 1999).
  
  

• OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 413.10 [Multiple Defendants]; 413.60 [Common Closing Remarks] (Anderson, 2000/01).
  
  

• OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-112 [Receiving-Explanation Of Possession] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).
  
  

• PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 2.05 [Avoiding Premature Opinions] (Pennsylvania Bar Institute, PBI Press, 12/88).
  
  

• SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-12-5 [motive instruction]; 1-13-4 [Multiple Defendants-One Court]; 1-13-5 [Multiple Defendants-Multiple Counts]; 1-14-1 [Direct And Circumstantial Evidence]; 1-14-6 [Confesions And Admissions - Definitions]; 1-15-11 [Witness-Refusal To Testify] (State Bar of South Dakota, 2000).
  
  

• TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 42.11 [Express Admissions Against Interest]; 42.18 [Flight] (West, 5th ed. 2000).
  
  

• McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:370 [Closing Instruction-Burden Of Proof-Reasonable Doubt-Communication With Others] (James Publishing, 2000).
  
  

• Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.08 [Instruction: Deliberations]; 5.15 [Instruction: Charges Dismissed, Consolidated, Or Separated From Case]; 5.17 [Instruction: Decision Of Defendant To Not Testify]; (Lexis, 1993).
  
  

• CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 2.48 [Statements Of The Defendant-Substantive Evidence]; 2.10 [Direct And Circumstantial Evidence]; 2.50 [Statements-Codefendants]; 2.53 [Multiple Defendants-One Count]; 2.54 [Multiple defendants-Multiple Counts]; (Bar Association of the District of Columbia, 4th ed. 1993).
  
  

• WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, 1.05 [Voluntariness Of Confession]; 6.12 [Voluntariness Of Confession]; (Wyoming State Bar, 1996).

    In sum, use of the phrase "guilt or innocence" or "guilty or innocent" should be removed from all instructions which the jury receives.

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: If the jury is simply told that the prosecution has the burden of proving the defendant guilty, there is a danger that the jury may not apply this burden separately to each element of the charge.

POINTS AND AUTHORITIES: The federal constitutional rights to due process and fair trial by jury (5th, 6th and 14th Amendments) require that every fact necessary to constitute the crime be proven beyond a reasonable doubt by the prosecution before criminal liability may be imposed for the offense. (Sullivan v. Louisiana (1993) 508 US 275, 281-82 [113 SCt 2078; 124 LEd2d 182]; see also Estelle v. McGuire (1991) 502 US 62, 69 [112 SCt 475; 116 LEd2d 385]; In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].)

    See also NCJIC 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction]; see also NCJIC 270.4.2 [Proof Beyond A Reasonable Doubt: Applicable To Subordinate Facts Essential To Proof Of An Element Of A Crime].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION # 1:

    The presumption of innocence stays with the defendant as to each material allegation of the charges through each and every stage of the trial.

[See FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 2.03. [Plea Of Not Guilty; Reasonable Doubt; And Burden Of Proof] (Florida Bar, 1987).]

    The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and, if it fails to do so, you must acquit the defendant.

[See McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:350 [General Instruction-Reasonable Doubt, Presumption Of Innocence] (James Publishing, 2000).]

    The defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.

[See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.2 [Charges Against Defendant Not Evidence- Presumption Of Innocence-Burden Of Proof] ¶ 2. (2000).]

    The prosecution has the burden of proving each and every essential element of the charges beyond a reasonable doubt.

[See Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 1-14, [Reasonable Doubt Charge] ¶ 1. (South Carolina Bar, 1995).]

    The prosecution has the burden of proving every element of the offense beyond a reasonable doubt.

[Source: NCJIC.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: When the defense focuses on a specific element of the offense it may be misleading to inform the jury that the defendant's plea of not guilty constitutes a denial of every allegation in the charge.

POINTS AND AUTHORITIES: Some standard instructions inform the jury that a plea of not guilty constitutes a denial of every material allegation in the charges. (See e.g., WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 1.01 [Advance Oral Instruction-Introductory] ¶ 3 (West, 2nd ed. 1994).) Such an instruction may be misleading in cases where the defense is directed at a specific element rather than being a general denial of every material allegation. (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 110 [One Defendant: Single Count: No Included Offense] comment (University of Wisconsin Law School, 2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION:

    Because the defendant entered a plea of not guilty, the prosecution must prove each and every element of the offense beyond a reasonable doubt.

[See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 110 [One Defendant: Single Count: No Included Offense] (University of Wisconsin Law School, 2000).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

RATIONALE: Without an explanatory instruction the jury may improperly assume that it cannot acquit unless the defendant rebuts or answers the prosecution evidence.

POINTS AND AUTHORITIES: See 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.02 [Presumption Of Innocence; Proof Beyond A Reasonable Doubt] (2002); 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.05 [Description Of Charges; Indictment Not Evidence; Presumption Of Innocence; Burden Of Proof (Single Defendant, Single Count)] (2000); Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.39, [Instruction: Presumption Of Innocence] ¶ 2, sent. 2 (Lexis, 1993); NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal 5.18. [Presumption] (State Bar Association of North Dakota, 1999)]; McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:350 [General Instruction-Reasonable Doubt, Presumption Of Innocence] (James Publishing, 1999).

    See also NCJIC 270.3.1 [Jury's Duty Is To Decide If The Prosecution Has Met Its Burden, Not To Find Or Seek "The Truth"].

    See also NCJIC 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].

    See also NCJIC 270.4.10 [Any Single Fact May Be Sufficient For A Reasonable Doubt].

    See also NCJIC 251.4.2.2 [Whether Jury Should Be Instructed That Good Character Of Defendant – "Standing Alone" -- Is Sufficient To Raise A Reasonable Doubt].

    See also NCJIC 270.2.11 [Presumption Of Innocence Is Not A "Mere Slogan"].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

SAMPLE INSTRUCTION # 1:

    It is a cardinal principle of our system of justice that every person accused of a crime is presumed to be innocent unless and until his/her guilt is established beyond a reasonable doubt. The presumption is not a mere formality. It is a matter of the most important substance.

    The presumption of innocence alone may be sufficient to raise a reasonable doubt and to require the acquittal of a defendant. The defendant before you, [__________], has the benefit of that presumption throughout the trial, and you are not to convict him/her of a particular charge unless you are persuaded of his/her guilt of that charge beyond a reasonable doubt.

[Source: 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.02 [Presumption of Innocence; Proof Beyond a Reasonable Doubt] (2002).]

    The indictment in this case charges that the defendant committed the crime of ___________________ (insert offense). The defendant has pleaded not guilty to that charge. As I told you at the beginning of the trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against [him] [her]. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the Government proves, beyond a reasonable doubt, each essential element of the crime charged.

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.05 [Description Of Charges; Indictment Not Evidence; Presumption Of Innocence; Burden Of Proof (Single Defendant, Single Count)] ¶ 1, 2 (2000).]

    The presumption of innocence alone is sufficient to acquit the defendant, unless the prosecution has proved beyond a reasonable doubt that the defendant is guilty.

[See Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.39, [Instruction: Presumption Of Innocence] ¶ 2, sent. 2. (Lexis, 1993).]

    All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all of the evidence in the case.

[Source: McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:370 [Closing Instruction-Burden Of Proof-Reasonable Doubt-Communication With Others] (James Publishing, 2000).]

VOLUME 13 - CHAPTER 270

RATIONALE: In multi-defendant trials when one defendant points the finger at another, the jury is required to perform the difficult task of judging a single factual issue under two distinct standards. In other words, when one defendant contends that the other is the guilty party, the situation is analogous to third party guilt situations where the evidence of the other party's guilt need only raise a reasonable doubt as to defendant's guilt. However, when the alleged third party is a codefendant in the trial, the jury must also judge the party's guilt under the prosecution's burden of proof beyond a reasonable doubt. In such cases, there is a danger that the jury may not differentiate between the two different standards and reject the defendant's contention that the codefendant is guilty or culpable on the basis that the prosecution did not succeed in proving the codefendant guilty beyond a reasonable doubt.

POINTS AND AUTHORITIES: Even though the prosecution is required to prove the codefendant guilty beyond a reasonable guilt, the defendant has a much lighter burden when he or she contends that the codefendant is the only guilty party. A defense theory that a third party committed the offense need only raise a reasonable doubt as to the defendant's guilt. (See NCJIC 270.4.7 [Reasonable Doubt: Defendant Need Not Prove Probability Of Innocence].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

    It is crucial that you understand that only the prosecution, not a defendant, bears the burden of proof. In this case, both the defendant ____________ and the prosecution contend that codefendant _______ is guilty of ____________. However, because the prosecution has the burden of proof and defendant________ does not, your decision as to whether codefendant ________ committed _______must actually be made twice under two different standards.

    One decision must be made as to whether the prosecution has met its burden of proving _________ guilty of _____ beyond a reasonable doubt.

    The other decision must be made as to whether the evidence of _______ guilt raises a reasonable doubt as to the guilt of defendant ___________.

    Thus, even if you decide that the prosecution failed to prove _______ guilty of _______ beyond a reasonable doubt, this does not prevent you from deciding that there still is enough evidence of codefendant's guilt to raise a reasonable doubt as to the guilt of the defendant.

[Source: NCJIC.]

    It is crucial that you understand the difference between the burden of proof as it applies to the prosecution as opposed to the defendants. In this case, both the prosecution and the defendant ______________(B) are contending that defendant ______________(A) committed an assault against defendant ________________(B). However, your consideration of these contentions must be governed by two different standards.

    In deciding whether the prosecution has proven that __________________(A) assaulted _________________(B) you must decide whether it has been proven beyond a reasonable doubt that ___________________(A) did so. If you have a reasonable doubt that ________________(A) is guilt of assault against _______________(B), you must find that the prosecution has not met its burden under the proof beyond a reasonable doubt standard.

    On the other hand, in deciding whether to accept ______________(B)'s contention that ___________________(A) assaulted [him] [her], you must not imposed a burden on ___________________(B) to prove ___________________(A) guilty of assault. There need only be enough evidence of _____________________(A)'s guilt to raise a reasonable doubt in your mind as to the guilt of _________________(B). Thus, even if you find the evidence insufficient to satisfy the prosecution's burden of proving ___________________(A) guilty of assault, such evidence may still be sufficient to support ____________________(B)'s claim of self defense.

[Source: NCJIC.]

    You have heard evidence that defendant __________________(A) was the one who fired the first shots by assaulting defendant ____________________ (B) as he drove by. Defendant ______________________ (B) is not required to prove beyond a reasonable doubt that ____________________(A) is guilty of assault. __________________ (B) is entitled to an acquittal if the evidence raises a reasonable doubt in your minds as to whether [he] [she] was lawfully defending [himself] [herself]. The evidence that _____________________ (A) fired the first shots may by itself raise a reasonable doubt as to ______________________(B)'s guilt, even if it is insufficient to convict _____________________(A) of assault. However, its weight and significance, if any, are matters for your determination. If after consideration of this evidence, you have a reasonable doubt whether or not ____________________(B) acted in self defense, you must give the defendant the benefit of that doubt and find him not guilty.

[Source: NCJIC.]

    In deciding whether the prosecution has met its burden of proving that defendant _____________________(B) did not act in self defense you will be required to consider whether it was ___________________(B) or ___________________(A) who fired first.

    This will require you to apply a different standard regarding the assault alleged in Count ______ when you consider whether defendant _________________(B) acted in self defense than when you consider whether ___________________(A) should be convicted of assault.

    In deciding whether _______________________(A) should be convicted of assault, the prosecution has the burden of proving __________________ (A) guilty beyond a reasonable doubt. Hence, you may not convict [him] [her] of assault if you have a reasonable doubt that [he] [she] is guilty.

    However, in deciding whether defendant ______________________(B) acted in self defense the burden is on the prosecution to prove beyond a reasonable doubt that defendant ___________________(B) acted unlawfully. Hence, even if there was not enough evidence to convict ______________________(A) of assault, you are not bound by that determination in deciding whether defendant ____________________(B) acted in self defense. In other words, even if you do not convict ____________________(A) of assaulting __________________(B), you may still conclude that the prosecution failed in its burden to prove that _________________(B) was acting unlawfully and not in self defense.

[Source: NCJIC.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

    270.2.17    Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise

RATIONALE: Without an explanatory instruction the jury may not understand how to resolve conflicting inferences that are in a state of equipoise.

POINTS AND AUTHORITIES: The reviewing court must presume that the jury "resolved any [evidentiary] conflicts in favor of the prosecution, and must defer to that resolution." (Wright v. West (1992) 505 US 277, 296-97 [112 SCt 2482; 120 LEd2d 225].) However, when conflicting inferences are equally probable or, in other words, when the evidence is in equipoise, "the party with the burden of proof loses." (Simmons v. Blodgett (9th Cir. 1997) 110 F3d 39, 41-42; see also Rexall v. Nihill (9th Cir. 1960) 276 F2d 637, 644; Reliance Ins. v. McGrath (N.D. Cal. 1987) 671 FSupp 669, 675; Wilson v. Caskey (CA 1979) 91 CA3d 124, 129 [153 CR 798] ["equal probability does not satisfy a burden of proof...."].) The evidence must provide a reasonable basis to conclude that one inference is "more probable" than the other. (See U.S. v. Ramirez-Rodriguez (9th Cir. 1977) 552 F2d 883, 884 citing Turner v. U.S. (1970) 396 US 398 [90 SCt 642; 24 LEd2d 610].) "If there is nothing more tangible to proceed upon than two or more equally reasonable inferences from a set of facts, and ... under only one of the inferences would the defendant be liable, a jury will not be allowed to resort to conjecture to determine the facts. [Citations.]" (Olympia Oyster Co. v. Rayonier, Inc. (W.D. Wash. 1964) 229 FSupp 855, 861.) In other words, circumstantial evidence is "subject to the rule that if the conclusion reached from the facts in the chain of circumstances is equally consonant with the issues to be proven and with some other theory or theories inconsistent therewith, it becomes mere conjecture, and the rule of the burden of proof is not satisfied. [Citations.]" (Fegles Constr. Co. v. McLaughlin Constr. Co. (9th Cir. 1953) 205 F2d 637, 639; see also U.S. v. Glenn (2nd Cir. 2002) 312 F3d 58; U.S. v. Lopez (5th Cir. 1996) 74 F3d 575, 577; U.S. v. Andujar (1st Cir. 1995) 49 F3d 16, 20; U.S. v. Menesses (5th Cir. 1992) 962 F2d 420, 426; U.S. v. Wright (8th Cir. 1987) 835 F2d 1245, 1249; Cosby v. Jones (11th Cir. 1982) 682 F2d 1373, 1383.)

    For example, in Gustine v. State (FL 1923) 97 So 207, the Florida Supreme Court held that an attempt to "hot-wire" a care was insufficient to show an intent to steal as opposed to an intent to temporarily use the car.

    "If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypotheses rather than another, such evidence cannot amount to proof however great the probability may be. [Citations.]

    If it be assumed that the evidence on behalf of the state is sufficient basis for the inference that defendant intended to move the automobile and to run it, his acts are as consistent with the conclusion that he intended to use it temporarily ... as that he intended to appropriate it and permanently deprive the owner of his possession ...." (Emphasis added.)

(Gustine v. State, supra, 97 So at 207-208; see also generally Nishikawa v. Dulles (1958) 356 US 129, 137 [78 SCt 612; 2 LEd2d 659] [equally probable inferences of intent from the act committed created an "evidentiary gap"]; Stallings v. Tansy (10th Cir. 1994) 28 F3d 1018, 1024 [prosecution’s reliance solely on the act of passing a forged check created a fatal evidentiary gap as to the element of knowledge].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

    If the prosecution’s evidence gives equal or nearly equal circumstantial support to competing explanations for an element of a charge, one consistent with the prosecution’s theory of guilt but the other an equally plausible innocent reason for the same facts as offered by the defense, then you must necessarily entertain a reasonable doubt as to the truth of an element of the charge and, therefore, find the defendant not guilty.

[Source: U.S. v. Glenn (2nd Cir. 2002) 312 F3d 58, 70.]

    If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves the jury indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypotheses rather than another, such evidence cannot amount to proof however great the probability may be.

[Source: Gustine v. State (FL 1923) 97 So 207, 207-208.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

APPELLATE PRACTICE NOTE: See Whaley v. Commonwealth (VA 1973) 200 SE2d 556, 558 [presumption of innocence is a landmark of the law and is not sufficiently covered by the reasonable doubt instruction].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See also generally, NCJIC 305.2.5 [Burden Of Proof/Presumptions].

See generally, NCJIC 270.2.19 [Presumption of Innocence: Federal Model Instructions and Notes].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 13 - CHAPTER 270

See 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.02 [Nature of Indictment; Presumption of Innocence] (2002).

See also 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.02 [Presumption of Innocence; Proof Beyond a Reasonable Doubt] (2002).

See also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.05 [Presumption of Innocence, Burden of Proof, Reasonable Doubt] (2001).

See also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.03 [Presumption of Innocence
Burden of Proof Reasonable Doubt] (1991).

See also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 2.03 [Presumption of Innocence--Burden of Proof] (1999).

See also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.01 [General: Nature of Case; Nature of Indictment; Burden of Proof; Presumption of Innocence; Duty of Jury; Cautionary ] (2000).

See also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.05 [Description of Charge; Indictment Not Evidence; Presumption of Innocence; Burden of Proof (Single Defendant, Single Count) ] (2000).

See also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.2 [The Charge–Presumption of Innocence] (2000).

See also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.2 [Charge Against Defendant Not Evidence–Presumption of Innocence–Burden of Proof] (2000).

See also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL BI 2.1 [Duty to Follow Instructions Presumption of Innocence] (1997).

See also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL BI 2.2 [Duty to Follow Instructions Presumption of Innocence (When Any Defendant Does Not Testify)] (1997).

See also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. 9 [Standard Introduction to the Charge] (1988).